We previously discussed the case of Doyle Randall Paroline, who pleaded guilty in Texas in 2009 to possessing child pornography. He downloaded hundreds of images and two were found to be child pornography dedicating the abuse of Amy. After pleading guilty, Paroline was hit by $3.4 million in restitution damages for Amy even though he had no role in her victimization nine years earlier or any role in the production or distribution of the two photos. The United States Court of Appeals for the Fifth Circuit found that the federal restitution law does not require “proximate causation” — a critical limitation in torts and criminal law that ensures that liability is confined to those parties immediately responsible for injuries. I have criticized the expansion of restitution in this area for years and I spoke with NPR’s On The Media on the case. The Court has now ruled and reversed the Fifth Circuit in a 5-4 decision. As discussed with regard to yesterday’s decision in the Michigan affirmative action case, my Supreme Court class votes on the merits and predicted outcome of the major cases of the term before the Supreme Court. On this occasion, the vote was 8 to affirm and 6 to reverse. The latter “reversal” is closest to the outcome in the case. On prediction, the vote was 11 to 2 in favor of affirming so we were way off on the prediction on this one.
Amy was eight when she was raped by her uncle, who then posted the pictures of the crime. James Marsh in a White Plains, N.Y., lawyer has made something of a cottage industry in sending demands for restitution on her behalf in any case that involves an image of Amy or other abuse victims. The firm reportedly sent out hundreds of these demands on the theory that viewing the images is part of the victimization. There is certainly a good-faith argument in support of such damages. However, the theory would cut restitution away from its historical moorings. It is would also eliminate the fundamental role played by proximate cause. There are millions of images floating around the Internet and people can now download hundreds with a single click. While I often do not believe many defendants who say that their possession was accidental, it is possible to come into possession without true intent. However, the law as currently written makes a defense difficult and the sentences are so high that most defendants plead guilty to avoid ten years or more in jail. Now, with a new restitution ruling, they face bankruptcy as well as longer sentences.
The Supreme Court ruled that a victim of child pornography may be entitled to restitution under 18 USC § 2259 but only to the extent the defendant’s offense proximately caused the victim’s losses. In an opinion by Justice Anthony Kennedy, the court found that the the Fifth Circuit’s interpretation was wrong, vacated the decision below and remanded the case for further consideration. Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas. Justice Sonia Sotomayor also filed a dissenting opinion. The majority is an eclectic group (as is the dissenting justices) that do not follow the classic left/right divide.
The case turned on the question of proximate causation as understood in both criminal law and torts:
Every event has many causes . . . and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is “a flexible concept,” Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 654 (2008), that generally “refers to the basic requirement that . . . there must be ‘some direct relation between the injury asserted and the injurious conduct alleged,’” CSX Transp., Inc. v. McBride, 564 U. S. ___, ___ (2011) (ROBERTS, C. J., dissenting) (slip op., at 3) (quoting Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992)). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, Substantive Criminal Law §6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 838–839 (1996).
The majority found that the Fifth Circuit disregarded a core element of proximate causation. The well-reasoned and well-written treatment explores such tests as the But-For Test, which are rejected in this context. The opinion actually goes into a detailed discussion of torts theories of causation (I actually included Paroline in this year’s torts class for that reason). The Court rejects the sweeping causation theory of both the Obama Administration and the victim:
Contrary to the victim’s suggestion, this is not akin to a case in which a “gang of ruffians” collectively beats a person, or in which a woman is “gang raped by five men on one night or by five men on five sequential nights.” Brief for Respondent Amy 55. First, this case does not involve a set of wrongdoers acting in concert, see Prosser and Keeton §52, at 346 (discussing full liability for a joint enterprise); for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands. See Brief for Respondent Amy 65.
One of the more interesting asides in the opinion deal with the suggestion that restitution could be treated as a punishment for the purposes of the Eighth Amendment. The Court has steadily gutted the protections of the Eighth Amendment in the view of many constitutional criminal law professors. Yet, the majority indicated that restitution could be treated as not just failing under the Eighth Amendment but a violation of the amendment if it were given the meaning advocated by the Administration and the victim:
The reality is that the victim’s suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment. To be sure, this Court has said that “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.” Browning-Ferris Industries of Vt., Inc.
v. Kelco Disposal, Inc., 492 U. S. 257, 268 (1989). But while restitution under §2259 is paid to a victim, it is imposed by the Government “at the culmination of a criminal proceeding and requires conviction of an underlying” crime, United States v. Bajakajian, 524 U. S. 321, 328 (1998). Thus, despite the differences between restitution and a traditional fine, restitution still implicates “theprosecutorial powers of government,” Browning-Ferris, supra, at 275. The primary goal of restitution is remedial or compensatory, cf. Bajakajian, supra, at 329, but it also serves punitive purposes, see Pasquantino v. United States, 544 U. S. 349, 365 (2005) (“The purpose of awarding restitution” under 18 U. S. C. §3663A “is . . . to mete out appropriate criminal punishment”); Kelly, 479 U. S., at 49, n. 10. That may be “sufficient to bring [it] within the purview of the Excessive Fines Clause,” Bajakajian, supra, at 329, n. 4. And there is a real question whether holding a single possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be excessive and disproportionate in these circumstances. These concerns offer further reason not to interpret the statute the way the victim suggests.
The majority is less compelling when it comes to the test. The Court says that some restitution is appropriate and leaves the lower courts with little real guidance. Indeed, as is often the case, the Court will be accused of leaving the area in a muddle. While clarifying a bit by ruling out the most extreme restitution theory, the Court says that it is not necessary to create a more concrete test other than the following elements:
There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decision makers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 10), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether thedefendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.
These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of §2259, and thus the “full amount” of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means. See §3664(f)(2).
Having dealt with such cases in the past, I fail to see how a court could come up with a figure with any reliability under this approach. Factoring the level of past views, let alone all future views, invites an arbitrary determination. Moreover, it suggests that the damages might be much higher if a defendant is one of a few viewers (at this time) as opposed to looking at a popular image of child pornography. It would be up to the court to estimate if a new image is likely to “catch on.” It also suggests that early defendants nailed for restitution could pay the lion’s share of damages while later views would come at a fraction of that cost. The Court itself recognizes that recovery may be “piecemeal” and clearly does not favor the large awards secured in the past. The majority simply says that the restitution “would not be severe, but it would not be token.”
The dissent by Chief Justice Roberts (joined by Thomas and Scalia) is an equally interesting read. Roberts cautions how the desire to make a victim whole may blind the Court to the practical or legal flaws:
The Court is correct, of course, that awarding Amy no restitution would be contrary to Congress’s remedial and penological purposes. See ante, at 20. But we have previously refused to allow “policy considerations” including an “expansive declaration of purpose,” and the need to “compensate victims for the full losses they suffered” to deter us from reading virtually identical statutory language to require proof of the harm caused solely by thedefendant’s particular offense.
Roberts says that there are simply some injuries that cannot be quantified in this fashion:
Amy has a qualitatively different injury. Her loss, while undoubtedly genuine, is a result of the collective actions of a huge number of people beginning with her uncle who abused her and put her images on the Internet, to the distributors who make those images more widely avail- able, to the possessors such as Paroline who view her images. The harm to Amy was produced over time, gradually, by tens of thousands of persons acting independently from one another.3 She suffers in particular from her knowledge that her images are being viewed online by an unknown number of people, and from her fear that any person she meets might recognize her from having witnessed her abuse. App. 59–66. But Amy does not know who Paroline is. Id., at 295, n. 11. Nothing in the record comes close to establishing that Amy would have suffered less if Paroline had not possessed her images, let alone how much less. See Brief for United States 25. Amy’s injury is indivisible, which means that Paroline’s particular share of her losses is unknowable. And yet it is proof of Paroline’s particular share that the statute requires.
Notably, this would indicate that the Court was more lopsided than the vote count would indicate. In reality, some eight justices felt that restitution should either be small (5) or zero (3). Only Justice Sonia Sotomayor called for the full restitution. I found her opinion the least compelling, including her analogy to a gang rape case which is manifestly different from this circumstance in my view. Sotomayor however defended the analogy:
individuals need not act together to trigger joint and several liability; such liability applies equally to multiple actors who independently commit intentional torts that combine to produce an indivisible injury. Infra, at 11–14. And in any event, the offenders at issue in this case do act together, with the common end of trafficking in the market for images of child sexual abuse. See infra, at 12–13. While these offenders may not be physically in the same room when they commit their crimes, there is no reason to read §2259(b)(4)’s “mandatory” restitution command out of the statute for child abusers who hide behind the anonymity of a computer screen.
Obviously, I have long opposed restitution under the rationales of the prior rulings and in that sense I share many of the concerns raised by the Roberts dissent.
Here is the opinion: Paroline v US